1. ' The main point for consideration in the revision petition related to a procedural omission of a minor plaintiff suing without the aid of next friend and its consequential effect on further proceedings to be taken in the suit.
2. ' Material facts are these:-- ' Field No,1903 situate in revenue estate of Sanda KaIan in Lahore District measured 6 kanals and odd marlas. Out of it, Islam-ud-Din agreed with Muhammad Nawas Khan, Amir Khan and Mst.
3. Basharat Begum for sale of 19 marlas to them at the sale price of Rs,2,500 per marla. It was agreed that the sale-price for the land promised to be sold would depend upon its actual measurements at the spot. Sale-agreement was reduced in writing on 26-4-1975. Some payments towards the sale-price were made but there is a dispute between the parties on the amount paid under the agreement to sell. As the sale did not materialize in terms of the agreement Muhammad Nawaz Khan, Aamir Khan and Mst. Basharat Begum as plaintiffs instituted a suit for specific performance of the agreement to sell in their favour against Islam-ud-Din defendant in the Civil Court at Lahore.
4. Defendant resisted the suit. Number of pleas were taken in defence, but in view of the controversy at the hearing, it is unnecessary to make a detailed reference to them. In the first instance the trial Court settled six issues including that of relief on 9-12-1978. Sometime later, the issues were recast and amended on 5-11-1979. These have been correctly set out in judgment of the trial Court and need not be reproduced to avoid further burdening of the judgment of this Court. On 15-9-1980, the trial Court treated Issues Nos. 3, 4, 6 and 7 as preliminary issues and opted to decide them first, and ultimately found them against the plaintiffs and dismissed their suit with costs on 16-11-1980.
5. Plaintiffs filed an appeal against judgment of the trial Court. It was learnd by a learned Additional District Judge of Lahore, who dealt with preliminary issue No,3 only and found that since plaintiff No,2 Aamir Khan was minor at the time of the institution of the suit and had sued without a next friend the plaint was liable to be taken off the file as required by Order XXXII, Rule 2(1), Civil Procedure Code and did not express himself on the merits of the other issues. Thereupon vide judgment dated 13-9-1981 the learned Judge dismissed the appeal. Against this judgment of the Court below, plaintiffs have preferred this revision to this Court. It was admitted on 16-2-1982.
6. ' There is no controversy that plaintiff No,2 was minor at the time of institution of the civil suit by him.
7. Factum of his minority was quite evident by the Wakalatnama given by his father to the Advocate on his behalf. Other two plaintiffs did not suffer from any disability. In the written statement filed by the defendant he did not object to the plaintiff No,2 suing without a next friend. This objection was raised much later in a miscellaneous petition. In the first appeal as also the revision filed in this Court, father of plaintiff No,2 acted as his next friend. Therefore, in appeal and revision there was no defect in his representation before the Court. In this background, I must straightaway address myself as to the statutory provisions governing the point. Those are found in Order XXXII, Rules 1 and 2, Civil Procedure Code. Rule 1 of the Order provides that every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor. Rule 2 says that where a suit is instituted by or on behalf of a minor without a next friend, the defendant may apply to have the plaint taken off the file (emphasis supplied) with costs to be paid by the pleader or other person by whom it was presented. More important would be sub-rule (2) of Rule 2, which provided for the nature of the order to be made by the Court. It says "notice of such application shall be given to such person, and the Court, after hearing his objection (if any), may make such order in the matter as it thinks fit."
8. There is no doubt that a minor is incompetent to act. He required the aid and assistance of a person called his next friend to act through and on his behalf in Court while suing as a minor plaintiff. Similar consideration applied to the case of a person of an adjudged unsound mind or found upon enquiry by the Court by reason of unsoundness of mind or mental infirmity to be incapable of protecting his interests, when suing or being sued. See Order XXXII, Rule 15, Civil Procedure Code. The expression 'the plaint taken off the file' is not equivalent to its summary rejection or dismissal of the suit without trial. This expression was first interpreted in Beni Ram Bhutt and others v. Ram Lal Dhukri and others (Volume XIII, of I.L.R. Calcutta Series 189) by a Division Bench of the Calcutta High Court. After quoting section 442 of the then Code of Civil Procedure the Court proceeded to observe:-- "That section refers to a case where, on the face of the plaint, it appears that it was filed by a person who was a minor. It does not contemplate any enquiry into the question of minority as in this case, where it is brought by persons professing themselves to be adults, and where the defendant' objects to the suit on the ground that they are not adults but minors, and where, upon these conflicting allegations, an issue is raised for trial. In a case like this the order of the Court, if it finds that the defendants' allegation is correct, is not passed under S.
442. A case of this nature is not expressly provided for in the Civil Procedure Code, but there are decided cases which show that in a case of this nature the former practice which, not being abrogated by the present Code, must be considered to be in force, was to suspend all proceedings and to allow sufficient time to enable the minor to have himself properly represented in the suit by next friend; but be that as it may, the order which has been passed in this case does not appear to us to be an order under S.442. It is therefore, not necessary for us to decide the question whether an order under S.442 is appealable. The present order, although it professes to have been passed under S.442, must be an order rejecting the plaint or dismissing the suit on the ground that the suit was instituted by persons who were established on the evidence to be minors. Whether considered as an order rejecting the plaint or dismissing the suit, it would be appealable because it comes within the meaning of the word "decree" as given in S.2 of the Civil Procedure Code, and there is no reason why the words "rejecting the plaint" used in S.2 should be limited to the cases provided for in sections 53 and 54. We are of opinion that the preliminary objection taken before us must be overruled. Then, as regards the merits of the appeal, it seems to us that, even if we were inclined to agree with the lower Court that all the plaintiffs were minors at the time when the suit was instituted, still we should have held that the lower Court was not justified in dismissing the suit upon that ground. We have already referred to the practice that prevailed before the new Code of Procedure was passed, and we have already said that that practice has not been abrogated by any provision in the Civil Procedure Code."
9. ' The point came under consideration of the Bombay High Court in Rattonbai v. Chabildas Lalloobhoy and others (Volume XIII of Bombay Series 7), wherein a learned Single Judge of that Court, on interpretation of S.442 of Civil Procedure Code (Act XIV of 1882) dealing with a similar kind of objection at page 11 observed:-- "As regards the law of the case, there is no doubt that an infant cannot prosecute an action either in person or by solicitor, but only through an adult person known as 'the next friend of the minor'.
10. There is no doubt also that if an infant do sue either in person or by solicitor, the defendant may, under section 442, apply to have the proceedings set aside. The omission is not more than an irregularity. It is not a case of nullity. But the cases cited by Mr. Starling show that the Courts, both in England and in India, as a rule, only strike the plaint off the file where it appears, on the face of the plaint, that it was filed by a person who was a minor, or when it is proved that it was filed with the knowledge that the plaintiff was a minor, and with the intention of deceiving the Court and evading the payment of costs in case the plaintiff failed in the claim."
11. ' Then comes a decision by a Division Bench of this Court in Ali Ahmad v. Said Mian and another AIR 1924 Lah. 188(1). Their Lordships of the Division Bench taking note of the phraseology employed in sub-rule (2) had this to say:-- "In our opinion the order rejecting the plaint is clearly erroneous. It is not an order contemplated by Order 32, Rule 2, Civil Procedure Code, and moreover there was no application by the defendant to have the plaint taken off the file. It was pointed out in the case of Beni Ram v. Ram Lal (1886) 13 Cal.
12. 189, that a case of this nature is not expressly provided for in the Procedure Code, but there are decided cases which show that in a case of this nature the former practice must be considered to be in force. This practice was to suspend all proceedings and to allow sufficient time to enable the minor to have himself properly represented in the suit by a next friend. In the present case there is no ground at all for supposing that the plaintiff knowingly instituted the suit without a next friend with intention to deceive. Mr. Gobind Ram urges that on the 9th October, 1919, the date on which the plaint was rejected, the suit, if then instituted, would have been barred by time. We have nothing to do with the question of limitation at present which can be decided by the trial Court to which this case will be sent hack."
13. ' In Bachh Raj v. Sunder Mal and others (AIR 1963 Rajasthan 119) a Bench of two Judges on the expression 'may make such other order in the matter as it thinks fit' used in sub-rule (2) observed:- - "The words, 'may make such order in the matter as it thinks fit' appearing in sub-rule (2) of Rule 2 of Order 32, Civil Procedure Code, should be fairly construed to empower a Court to permit the suit instituted by or on behalf of a minor to be continued after taking steps to see that a next friend of the minor is named and brought on record to conduct the suit on behalf of the minor. It is not correct to conclude that the rule contemplates merely an order taking off the plaint. On a fair construction it does contemplate an alternative order for rectification of the error and the continuance of the suit. Similarly, R.3 shows that the plaint need not necessarily mention the guardian ad litem of the minor defendant. Sub-rule (1) clearly provides that where the defendant is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor. In fact, according to the true construction of Rule 3 there can be guardian ad litem of the minor only under the orders of the Court.
8. On the basis of the language of R.2 and R.3 was feel inclined to take the view that subsequent steps taken by a party to secure the proper representation of the minor, whether he is a plaintiff or a defendant, can validate the earlier irregularities, if any, in the mention of the next friend or guardian ad litem of the minor. In our opinion, the learned counsel for the respondent cannot derive much assistance from the observations made in Rashid-un-Nisa v. Muhammad Ismail Khan I L R 31 All. 572 (PC)."
14. ' In Mian Ghulam Hasan and 4 others v. Agee Ahmad Khan Additional District Judge, Lahore and 8 others (PLD 1982 Lah. 424), my learned brother, Muhammad Ilyas, J. Took the view that:-- "The sum and substance of the arguments raised by learned counsel for the petitioners was that if a suit is required to be instituted through a next friend but is not so instituted, the only course open to the Court before which the suit is filed is to direct that the plaint be taken off. In other words, according to him, it is not open to the Court to allow the plaintiff to bring forward a next friend to prosecute the suit on his behalf. He, however, did not cite any authority in support of the stand taken by him. As against this, there are numerous authorities on the point that if the Court finds that the suit which should have been filed through a next friend has not been brought accordingly, it can allow reasonable time to the plaintiff to sue through a next friend and in case he fails to make amends within the time allowed to him the Court can direct that the plaint be taken off.
15. Some of the authorities have been reported as Ali Ahmad v. Said Mian and another (AIR 1924 Lah.
16. 188) and (Rupooth) Ririchand alias Ramanunni Kurup v. Vayisravanth Manakkol Raman and another (AIR 1923 Mad. 553). I am, therefore, unable to agree with the learned counsel that having decided the" aforementioned issue against the deceased plaintiff, it was obligatory for the learned Civil Judge to throw away the plaint."
17. ' Similar views were, expressed by my learned brother Salim Akhtar, J. Of the Karachi High Court, now an Hon'ble Judge of the Supreme Court, in case of Ebrahim Fikree and others v. Taufiq Fikree and others (1987 CLC 2224 at page 2226). His Lordship observed:--- "Where a plaintiff is of an unsound mind law requires that suit should be filed in his name through his next friend but in cases where a defendant is of unsound mind the Court has to appoint guardian ad litem for defending the suit. The consequence for non-compliance for filing suit by a person of unsound mind without a next friend is mentioned in Order XXXII, Rule 2, C.P.C., which provides that the plaint is to be taken off the file. This expression is not synonymous to rejection of the plaint or dismissal of the suit. It has been interpreted to mean that the proceedings shall be stayed. In certain authorities view has been taken that the plaint should be rejected. But the consensus is that the procedure provided under law is to facilitate the administration of justice, and, therefore, in such cases defaulting party may not be penalised. Where any plaintiff of unsound mind sues without a next .Friend and 'an objection is taken by the defendant or such admissions are made in the plaint, the Court will be competent to stay the proceedings and require the plaintiff to sue through a next friend and direct him to take necessary steps as provided under law.
18. Reference can be made to AIR 1924 Lah. 188, AIR 1928 Cal. 537, AIR 1928 Mad. 558 and PLD 1982 Lah.
424. Where no next friend is available the Court can order some one to act as his next friend."
19. ' In a later part of the judgment, his Lordship came to the conclusion that in case of more plaintiffs, where one or two suffer from a disability of minority or unsoundness of mind, it would not be a sound rule to take the plaint off the file to put an unceremonious end to it.
20. Though the term 'plaint' is not defined in Civil Procedure Code yet Order VII, Rule 1, Civil Procedure Code provides about what it must necessarily contain. One of the requirements laid down in it is that where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect, must be made in the plaint. Civil Procedure Code prescribes various Rules as to the form of the plaint and other particulars. But a non-compliance with these Rules will not necessarily make the plaint invalid. See AIR 1921 Sindh.
166. Appendix 'A' of the Schedules dealing with title of suits provides for forms in case of minors or persons of unsound mind suing through a next friend. It was not denied that the plaint was defective in that respect as it did not state that plaintiff No,2 was minor. Further suit was not stated to have been filed through a next friend. The defect is there. Nonetheless, knowing that plaintiff No,2 was minor and was incapable to sue by himself, his father, who was his natural guardian, also signed a Vakalatnama in favour of the Advocate on his behalf. In this view, there is no ground to suppose any deception or an attempt to derive some illegal gain or advantage from the opposite side. The omission to sue through a next friend as required by Rule 2 of Order XXXII, Civil Procedure Code could be fairly regarded as a rectifiable procedural error capable of being remedied by proper steps taken in that direction. Omission/error is not of colossal magnitude to prove fatal to the proceedings lawfully commenced. Laws of procedure have their own place in jurisprudence.
21. They are meant to subserve and advance the cause of justice. Moral of law teaches for decision on merits and that factor, the Court must always keep in forefront of its mind, because it exists to judge on the valuable rights of the parties before it and to do justice between them. Performance of public functions is a sacred duty but justice is a sacred trust. Therefore, instead of throttling the litigation without its trial on merits on account of a mere procedural mistake, the learned Judge ought to have allowed the plaintiffs an opportunity to correct the error by permitting amendment to the plaint. That course would not have caused any prejudice to the other side. No question of limitation was involved in it because in view of an Explanation to section 3 of the Limitation Act, a suit is instituted in ordinary cases, when the plaint is presented to the proper officer; any defect in form of representation envisaged by Order XXXII, Civil Procedure Code notwithstanding. On this point, I can safely look for assistance to the judgment of the Supreme Court in Muhammad Ismail etc. v. Muhammad Sarwar etc. (1980 SCMR 254). Though it was a case relating to a defendant suffering from disability but the ratio of the case shall equally apply to the case of the plaintiff. In these circumstances this Court shall take upon itself to adopt the correct course to remedy the defect in the plaint to arrest further delay. As the learned Judge below did not firmly express on the findings recorded on other Issues and had dismissed the appeal on the ground, which is not acceptable to this Court, I would allow the revision and setting aside his order remand the case to the learned District Judge, Lahore, for a decision afresh of the undecided points in appeal. The plaintiffs shall be given a reasonable opportunity for remedying the defect in the plaint. After receipt of amended plaint from them, the substituted defendant in the suit, shall also be allowed a reasonable time for submitting his written statement. It may be observed that the learned District Judge shall either hear the remanded appeal himself or have it heard by a learned Additional District Judge in the District. There shall be no order as to costs in this Court.
22. ' The records be returned. Parties shall appear before the learned District Judge on 4-5-1991. An effort is required to be made for an expeditious decision of the appeal.